Disloyalty! Does Jefferson-Standard Stalk Still?

Abstract:     
In Endicott Interconnect Technologies, Inc. v. NLRB, 453 F.3d 532 (D.C. Cir. 2006), the District of Columbia Circuit breathed fresh life into the Supreme Court's 1953 decision in Jefferson-Standard Broadcasting. The Court rejected the decision of the National Labor Relations Board to hold that public criticism of an employer's product or the quality of its management is so disloyal as to be cause to dismiss the employee irrespective of the context of the utterance. The Labor Board extended this in Five Star Transportation, Inc., 349 NLRB No. 8 (2007). This article argues that the legal and ideological underpinnings of Jefferson-Standard have become thoroughly eroded over the ensuing half century; that, at best, disloyalty is worthless as a guide to decision, at worst, it chills speech of social value, and ought to be abandoned.

Accepted Paper Series